Himachal Pradesh High Court
Gopal Tanta vs Anita Tanta on 28 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 484 of 2010 Date of Decision: 14thSeptember,2023 .
Gopal Tanta ....Appellant Versus Anita Tanta of ....Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt Whether approved for reporting? Yes For the Appellant : Mr. Y.P.Sood, Advocate.
For the Respondent : Mr. Virender Singh Chauhan, Senior
Advocate with Mr. Vanshej,
Advocate.
Rakesh Kainthla,Judge (oral).
The present appeal is directed against the judgment and decree dated 18.10.2010, passed by the learned Additional District Judge, Fast Track Court, Shimla, HP, vide which the petition filed by the present appellant (petitioner before the learned Trial Court) was dismissed.(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
________________ Whether the reporters of local papers may be allowed to see the judgments? Yes ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 2
2. Briefly stated, the facts giving rise to the present appeal are that the petitioner filed a petition under Section 13 of .
the Hindu Marriage Act, 1955, for seeking divorce on the grounds of desertion and cruelty. It was asserted that marriage between the parties was solemnized on 03.07.1998, according to the Hindu customs, religion and ceremonies at Village Lahroti, Tehsil Jubbal, of District Shimla, H.P. One daughter Miss Monika was born to the parties. The respondent left her matrimonial home after three rt months of the marriage and went to the house of her parents.
The petitioner sent his mother to the parental house of the respondent and requested her to resume the matrimonial ties.
Respondent visited her matrimonial home and started residing with the petitioner. However, she again left the matrimonial home in January, 1999. The petitioner made many efforts to bring the respondent to her matrimonial home but these efforts were unsuccessful; rather respondent abused the petitioner and insulted him in the presence of her relatives. The respondent used to insult the petitioner by saying that he was not a fit match for her. She refused to attend the last rites of the grandmother of the petitioner, who died on 16.04.1999, despite being called by the petitioner. The petitioner took an accommodation on rent at ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 3 Cemetery, Sanjauli, Shimla and brought her to Shimla; however, she resided there only for 1½ months and started torturing the .
petitioner. The petitioner was not allowed to meet his newborn child and when he made the efforts, he was insulted by the respondent and her family members. These acts constitute cruelty to the petitioner. The respondent has deserted the of company of the petitioner without any reasonable cause. Efforts made to bring her back failed. Hence, the petition was filed to seek rt the relief mentioned above.
3. The petition was opposed by the respondent by filing a reply taking preliminary objections regarding lack of maintainability, the petition being not filed as per the Hindu Marriage Act and Rules framed thereunder. The marriage between the parties was not disputed on merits. However, it was specifically denied that the respondent treated the petitioner with cruelty; rather it was asserted that he and his family members harassed the petitioner on trivial matters and she was compelled to leave her matrimonial home in January, 1999. The petitioner and his relatives did not visit the child when she was born and no expenses of delivering the child were borne by the Petitioner. The petitioner used to misbehave with the respondent and gave ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 4 beatings to her under the influence of liquor. He even abused the relatives of the respondent. She was compelled to file a petition .
for the custody of the minor. She could not attend the funeral rites of the petitioner's grandmother because she was in the advanced stage of pregnancy and she delivered the child on 25.04.1999. The petition was filed without any basis. Hence, it of was prayed that the same be dismissed.
4. No rejoinder was filed.
5rt The learned Trial Court framed the following issues on 06.06.2006 and 05.09.2008:-
1. Whether the petitioner is entitled to a decree of divorce on account of cruelty caused to her by the respondent?
OPP
2. Whether the petition is not in accordance with the provisions of Act and Rule framed thereunder and is not properly filed? OPR.
2(a) Whether the respondent has deserted the petitioner as alleged. If so, its effect? OPP 2(b) Whether the petitioner is trying to take benefit of his own wrong? OPR.
3. Relief.
6. The parties were called upon to produce the evidence and the petitioner examined himself (PW-1), Kanta (PW-2), and ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 5 Bhawani Singh (PW-3). The respondent examined herself (RW-1) and Rakesh Daulta (RW-2).
.
7. The learned Trial Court held that the evidence on record proved that the respondent had treated the petitioner with cruelty. She admitted in her cross-examination that she had resided in her matrimonial home for about 3 months. Her of allegations regarding the cruelty were not believable as they were not corroborated by any contemporaneous conduct. The rt petitioner had hired independent accommodation at Shimla and admitted his daughter to the school but the respondent withdrew her without the consent of the petitioner. She had failed to establish any reasonable cause to reside separately from the petitioner. Therefore, the version of the petitioner was more believable than the denial of the respondent. However, the petitioner had filed a petition for restitution of conjugal rights before the learned Civil Judge (Senior Division), Shimla. Filing of the petition for restitution of conjugal rights amounts to condonation and the petitioner is disentitled to seek divorce in view of Section 23(1)(b) of the Hindu Marriage Act. Hence, the learned Trial Court answered issues No. 1, 2, 2 (b) in negative and issue no. 2 (a) redundant and dismissed the petition.
::: Downloaded on - 29/09/2023 20:34:15 :::CIS 68. Being aggrieved from the judgment and decree passed by the learned Trial Court, the present appeal has been filed .
asserting that the learned Trial Court erred in not appreciating the material placed on record. It was wrongly held that the filing of the petition for restitution of conjugal rights amounts to condonation. There is no condonation unless the matrimonial ties of are resumed between the parties. There is no evidence of the resumption of matrimonial ties and the view taken by the learned rt Trial Court regarding condonation is improper. Therefore, it was prayed that the present appeal be allowed and the judgment and decree passed by the learned Trial Court be set aside.
9. I have heard Mr Y.P.Sood, learned counsel for the appellant and Mr V.S.Chauhan, learned Senior Advocate assisted Mr. Vanshej, Advocate, for the respondent.
10. Mr. Y.P. Sood, learned counsel for the appellant submitted that the learned Trial Court erred in dismissing the petition on the ground of condonation. Filing a petition for restitution of conjugal rights does not amount to condonation as the condonation should be followed by the resumption of matrimonial ties signalling that the parties had forgiven their ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 7 past and agreed to start afresh. There is no evidence of the resumption of the matrimonial ties. Section 23 applies .
condonation to cruelty and not to desertion. The learned Trial Court erred in applying the bar of condonation to the desertion as well. He prayed that the present appeal be allowed and judgment and decree passed by the learned Trial Court be set aside.
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11. Mr. V.S. Chauhan, learned Senior Counsel for the respondent supported the judgment and decree passed by the rt learned Trial Court. He submitted that acts of cruelty and desertion are intricately connected. The plea of the respondent that she was treated with cruelty in her matrimonial home forcing her to leave the same was duly proved and the learned Trial Court erred in rejecting the same. Hence, he prayed that the appeal be dismissed.
12. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
13. The following points arise for determination:
1. Whether the judgment passed by the learned Trial Court is sustainable? OPP ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 8
2. Final Order
14. For the reasons to be recorded hereinafter while .
discussing my findings on the aforesaid point, my findings are as under:-
Point No.1. Yes.
of Final order: The appeal is dismissed as per the operative part of the order.
REASONS FOR FINDINGS rt Point no. 1
15. It was held by the Hon'ble Apex Court in Ravi Kumar v.
Julmidevi, (2010) 4 SCC 476 : (2010) 2 SCC (Civ) 185: 2010 SCC OnLine SC 271 that the Appellate Court has wide powers under Order 41 Rule 33 CPC to record different findings from the one recorded by the learned Trial Court when appreciation of the evidence by the learned Trial Court is improper. It was observed at page 480 :
"16. The power of the appellate court as explained in Order 41 Rule 33 of the Civil Procedure Code shows that very wide powers have been conferred. Commenting on the width of this power, Mulla (CPC 15th Edn., p. 2647) commented that this Rule is modelled on Order 59 Rule 10(4) of the Supreme Court of Judicature in England. The learned author further commented that the object of this Rule is to empower the appellate court to do complete justice between the parties.
::: Downloaded on - 29/09/2023 20:34:15 :::CIS 9This Court is in respectful agreement with the aforesaid commentary of Mulla on Order 41 Rule 33 with one rider. If there is a legal interdict, the Rule will not apply (see S. Nazeer Ahmed v. State Bank of Mysore [(2007) 11 SCC 75] and .
which has been followed in Samundra Devi v. Narendra Kaur [(2008) 9 SCC 100 : (2008) 3 SCC (Cri) 690] ).
17. Therefore, in the exercise of its power, the first appellate court can come to a finding different from the one which has been arrived at by the trial court, especially in a case where appreciation of evidence by the trial court is not proper. In the instant case, this Court finds that the trial of court has not properly appreciated the evidence of the child."
16. Therefore, this Court has the power as well as the rt jurisdiction to reassess the evidence and determine whether the learned Trial Court had recorded the findings correctly or not even without any cross-objections filed by the respondent assailing those findings.
17. Before seeing the correctness or otherwise of the findings recorded by the learned Trial Court, it is necessary to find out whether the learned Trial Court had correctly applied the bar of condonation to the present case or not.
18. The submission of Mr. Y.P. Sood, learned Counsel for the petitioner that mere reconciliation with the wife does amount to condonation and the same has to be followed by resumption of the matrimonial ties is supported by the judgment of Punjab and ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 10 Haryana High Court in Girdhari Lal v. Santosh Kumari, 1981 SCC OnLine P&H 583:1982 All India Hindu Reporter 97, wherein it was .
observed:
"8. In this case, the appellant had only shown his willingness to bring his wife. It can at best be said that he had forgiven her but that is not sufficient. To constitute condonation, forgiveness has to be followed by restoration. If the wife had come to the appellant and they had of cohabited, then it could be said that the appellant had condoned the cruelty but no such thing has happened. The respondent has been proved to be guilty of cruelty. There is no condonation. The learned trial Court has not applied rt correctly principles to law to the evidence on this issue and has fallen in error in deciding this issue in favour of the respondents. I reversed that finding and held that the respondent has been guilty of cruelty and the appellant has not condoned the same."
19. Similar is the judgment in Uttara Praveen Thool v.
Praveen, 2014 SCC OnLine Bom 7 : (2014) 2 Mah LJ 321 : (2014) 1 Bom CR 495 : (2014) 2 AIR Bom R 1 : (2014) 3 CCC 296 : (2014) 1 HLR 394 : (2014) 2 DMC 507, wherein it was observed at page 338:
"22. Thus, to constitute condonation in terms of section 23(1)(b) of the said Act, there must be forgiveness and restoration. The question, however, is whether for constituting condonation, the conduct of only one of the parties is to be considered or whether the conduct of both parties is to be taken into account. In other words, whether the unilateral act of one of the parties is to be considered or whether the bilateral acts of both parties are to be considered. If for constituting condonation, there must be forgiveness and restoration, it is obvious that bilateral acts of both parties will be required to be taken into account ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 11 while considering the aspect of condonation. Forgiveness and restoration cannot be unilateral and for it to be effective and fruitful, it has to be bilateral. One party to the marital tie may be ready to forgive and restore the same.
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One of the modes could be by filing proceedings for restitution of conjugal rights. The other party may, however, not be ready to forgive and restore said tie. The proceedings filed by one party for restitution could be opposed by the other by refusing to rejoin the marital tie. The same would not result in condonation in as much as there would be no consensus between the parties for the of purposes of forgiveness and restoration. It would remain one-sided. Hence, the aspect of condonation will have to be adjudicated after taking into account the bilateral acts of both parties. The offer made by one party and the reciprocal rt conduct of the other will have to be viewed together while determining condonation in terms of section 23(1)(b) of the said Act.
What we can gather from the above precedents is that condonation implies knowledge to the husband of being wronged by his wife, conscious election by him not to exercise the legal right flowing therefrom, to forgive the wife conditionally and the same resulting in the resumption of normal relationship between the couple. Thus, it is the resumption of normal marital ties with mutual understanding which assumes significance. In matters like the one at hand, where the desertion continues without even a day's break, the conditional forgiveness offered by the husband is not reciprocated by the respondent wife. On the contrary, she refuses to take advantage of the opportunity available and persists in desertion. As such, condonation which technically is a bilateral act or decision, never occurred and insistence upon the said aspect by the appellant wife is misconceived and ill advised.
23. In the present case, in view of filing of the petition for restitution of conjugal rights by the respondent, the appellant has submitted that the same amounts to the respondent condoning the alleged act of desertion and ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 12 cruelty. In the proceedings for restitution of conjugal rights, the appellant filed her written statement and opposed the relief sought by the respondent. The offer made by the respondent for restituting conjugal rights by .
filing a petition under section 9 of the said Act was not accepted by the appellant who replied that the respondent was not entitled for said relief. Prior thereto, the response of the appellant to the two notices sent by the respondent (Exh. 61 and 64) was also not positive. In her cross- examination, the appellant stated that it was suggested to the parties to live together on a trial basis and inform the of Court. She has also admitted that she had stated before the Marriage Counsellor that she would consider going back to her husband after her son would complete the age of 18 years. Thus, neither the pleadings of the parties nor the rt evidence of the appellant indicates any bilateral act or conduct so as to record a finding that there was forgiveness and restoration between the parties and the same amounted to condonation of the act of desertion on the part of the appellant."
20. However, this Court need not to dwell upon this matter as it is bound by the judgment of Hon'ble Division Bench of this Court in Nirmala Devi v. Ved Prakash, 1992 SCC OnLine HP 1: AIR 1993 HP 1 : (1992) 2 HLR 648 : (1993) 1 HLR 368 : (1992) 2 DMC 155, wherein it was categorically laid down that the filing of the petition for Restitution of Conjugal Rights clearly stipulates that the person seeking relief has no grouse or cause of complaint against the other and if there was any such complaint the same has been condoned or forgiven. It was observed at page 5:
::: Downloaded on - 29/09/2023 20:34:15 :::CIS 13"12. In case reference is made to the pleadings, it can be seen that the wife in her reply has in clear terms pleaded that the husband is not entitled to any relief from the Court since he had not come to the Court with clean hands and .
was breathing hot and cold in the same breath. The husband filed a petition under Section 9 of the Act, which was withdrawn and now he has claimed a decree for dissolution of marriage. To the specific averments made in para 8 of the petition that the husband had not condoned the acts of cruelty of the wife, the reply denied the said averments. This in our opinion amounts to taking up a plea of that even if the allegation of cruelty, if proved, amounts to the husband's condoning the said acts by having filed a petition under Section 9 of the Act. Even if it be assumed that condonation is not pleaded as a defence by the rt respondent in a petition, seeking a decree for divorce, as held in Dr N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, it is the duty of the Court in view of the provisions of Section 23(1)(b) to find whether the cruelty was condoned. The learned Judges in their report in para 54 said that:
"........Even though condonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of S. 23(1)(b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefendedcases. The relief prayed for can be decreed only if we are satisfied 'but not otherwise', that the petitioner has not in any manner condoned the cruelty...."
(Emphasis supplied)
13. In view of the mandatory requirement of sub-section (1) of Section 23 of the Act, it was incumbent for the District Judge to have also considered whether the husband was entitled to a decree for divorce even if the act of cruelty was found to have been proved by him. From the record, it was not possible to have pin-pointed the exact point when the wife made a statement making an allegation against her ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 14 father-in-law. However, it was, during the course of hearing arguments, stated at the bar that the proceedings before the Panchayat commenced in the year 1981 and a petition under Sec. 9 of the Act seeking a decree of .
restitution of conjugal rights was filed after a period of four years of making such allegation. Having waited for four years during which period the wife continued to remain residing at the house of her parents and thereafter, as admitted by the husband in his statement, his act of continued making efforts to bring the wife to his house and then filing a petition for restitution of conjugal rights of amounts to an act which can be termed as an act of forgiveness which conduct of the petitioner will amount to condonation depending upon the facts and circumstances of each case. Condonation has not been defined anywhere.
rt 'Condonation' is a word of technical import, which means and implies the wiping of all rights of the injured spouse to take matrimonial proceedings. In a sense condonation is reconciliation, namely, the intention to remit the wrong and restore the offending spouse to the original status which in every case deserves to be gathered from the attending circumstances. The forgiveness in order to constitute condonation need not be express. It may be implied by the husband of the wife's conduct and vice versa. Ordinarily, as a general rule, condonation of matrimonial offence deprives the condoning spouse of the right of seeking relief on the offending conduct. When a petition is filed claiming a decree for restitution of conjugal rights, it clearly stipulates that the person seeking relief has no grouse or cause of complaint against the other, spouse and even if there was any cause or complaint, the same has either been condoned or forgiven. The intention being to resume normal cohabitation. As held in Dastane's case (AIR 1975 SC 1534) (supra), matrimonial offence is erased by condonation. In view of clear provisions contained in clause (b) of sub-section (1) of Section 23 of the Act, it is always for the person who has approached the Court to satisfy that the act of cruelty has not been condoned. When such allegations were made by the wife in ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 15 her reply that the husband petitioner had filed earlier a petition under Section 9 of the Act, it was incumbent for the husband to have led evidence that after the wife left in the year 1981, she never returned and stayed with him as his .
wife. His statement is quite vague. According to him, after she had left his house, he made all efforts to bring her back. She used to come back from her parental house and stay with him for 7/8 days and then used to leave his house. This part of the statement when read with the remaining part of the statement would show that even after the Panchayat had decreed her claim she had been visiting the husband's of house. The conduct, in this case, of the husband in having moved the petition thereafter under Section 9 of the Act would amount to his intention to forgive the offending spouse in having made the statement before the Panchayat rt which alone was the ground made out which according to the husband was cruelty on the part of, the wife. Admittedly, the allegation was made once and was not repeated thereafter. Due to the parties having lived together even for a short duration of 7/8 days on a couple of occasions, as admitted by the husband, after the wife made the allegation amounts to the restoring of the offending spouse to the original status. By this act and conduct on the part of the husband, it can reasonably be inferred that the act stood condoned and as such husband was not entitled to the relief claimed.
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15. In this view of the matter, we are satisfied that because of the condonation of the act of cruelty, the husband was not entitled to a decree for divorce in view of the clear provision of clause (b), sub-section (1) of Section 23 of the Act."
21. A similar view was taken in Ravi Kumar v. Julmidevi, (2010) 4 SCC 476 : (2010) 2 SCC (Civ) 185: 2010 SCC OnLine SC 271 wherein it was observed at page 479 ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 16
9. Several questions cropped up in the course of the hearing before the High Court. One of them being whether in view of filing of a proceeding for restitution of conjugal rights, the appellant had condoned all alleged prior acts of cruelty .
of the wife.
10. The High Court after considering some decisions came to a finding that by filing a petition under Section 9 of the Act, the appellant had condoned the earlier alleged acts of cruelty of the respondent wife. Condonation is basically a question of fact. This Court finds that the reasoning of the High Court on condonation in the facts of this case is of correct.
22. The Hon'ble Division Bench of this Court was also concerned in Nirmala Devi (supra), with the question whether the rt filing of the petition of petition amounts to condonation of cruelty or not. Thus, the learned Trial Court had rightly held that filing a petition for Restitution of the Conjugal Rights under Section 9 of the Hindu Marriage Act will constitute the condonation and there is no infirmity in the same.
23. The respondent asserted that she was being treated with cruelty in her matrimonial home, which compelled her to leave her matrimonial home. The learned Trial Court held that in the absence of any complaint, the version of the respondent was not believable. There is no infirmity in this finding. The plea of cruelty has to be supported by contemporaneous conduct to lend strength to the same. In the present case, such conduct is ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 17 missing. No complaint was filed. Even the respondent resumed the matrimonial ties showing that she was not being subjected to .
the cruelty; otherwise, she would not have joined the company of the petitioner.
24. The respondent admitted in her cross-examination that she had withdrawn her child from the school without the of consent of the petitioner and his relatives. She gave an explanation that she was compelled to leave her matrimonial rt home. However, as already stated, there is no contemporaneous record to support her version. She filed a petition under Section 25 of the Guardian and Wards Act, 1890, and admitted in her cross-
examination that she made allegations against the petitioner's father in the said petition. A copy of the petition was not brought on record to corroborate her version. Therefore, in these circumstances, the finding recorded by the learned Trial Court that the respondent had failed to prove the absence of reasonable cause to reside separately from the petitioner cannot be faulted.
25. It was submitted that Section 23 of the Hindu Marriage Act does not apply condonation to desertion. This is not acceptable. It was laid down by Punjab & Haryana High Court in ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 18 Surjit Singh v. Surinder Kaur, 2010 SCC OnLine P&H 10158:2011 (1) PLR 479,that the desertion should be for a continuous period of .
not less than 2 years immediately preceding the presentation of the petition. If in the intervening period, the husband applies for restitution of conjugal rights, it cannot be said that there was compliance with the statutory requirement. It was observed:
of "6. The other ground of divorce urged was desertion. The desertion that will be actionable to find a ground for divorce shall be desertion for a continuous period of not less than two years immediately preceding the presentation rt of the petition. If within the intervening period of two years, after the presentation of the petition, the husband himself had applied for restitution of conjugal rights and also secured a decree for restitution, then it cannot be stated that the statutory requirement is complied with.
That shall be so, because by virtue of Section 23 of the Hindu Marriage Act, any act of the husband which has the effect of condoning the wife's conduct, will disentitle the person to obtain a decree for divorce. Section 23 (1)(b) reads as follows;
"where the ground of the petition is the ground specified in clause (i) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not, in any manner, condoned the cruelty".
The act of desertion to be a valid ground for a divorce must be such an act not falling within the period when the petition for restitution of conjugal rights was pending. The period of desertion must fall outside the period when despite a decree for restitution there has been a desertion.
::: Downloaded on - 29/09/2023 20:34:15 :::CIS 19The law itself recognizes through subclause 1(A) of Section 13 that if there had been no resumption, the husband would be entitled to a divorce. In this case, I have already pointed out that the petition for divorce has been filed within the .
one-year period of the decree for desertion.
7. The periods which have been mentioned under the Act are in some way inflexible, for it may happen that the case is pending for a long number of years and during all the number of years there has been no resumption. The mental conduct together with animus desiderandi must be a period before the petition and not during the pendency of the of proceedings. I am aware of decisions that a conduct during the proceedings suggesting a crucial attitude of one of the parties have been taken to be relevant. I cannot, however, accept a plea that the conduct to stay away from the rt company during the proceedings could ever offer such a valid ground for divorce."
26. Even this Court has also taken a similar view although not directly in Baldev Raj v. Bimla Sharma, 2005 SCC OnLine HP 19:
AIR 2006 HP 33 : (2006) 3 AIR Kant R (NOC 396) 47 : (2006) 4 All LJ (NOC 716) 31 : (2006) 2 AIR Jhar R (NOC 609) 93: 2006 AIHC (NOC
200) 69 : (2006) 1 HLR 400 : (2006) 1 DMC 92, wherein a petition was filed for divorce on the grounds of cruelty and desertion as well as restitution of conjugal rights. It was held by this Court that such a petition is mutually destructive and not maintainable.
It was observed:
"17. A Division Bench of this Court in Nirmala Devi v. Ved Prakash, AIR 1993 HP 1 has considered this question in detail. In that case, the husband filed the petition or dissolution of marriage by a decree of divorce on the ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 20 grounds of cruelty and desertion. The wife contested the petition. She raised a specific plea that the husband had earlier filed a petition under Section 9 seeking a decree for restitution of conjugal rights. He had withdrawn the said .
petition and then filed a petition for divorce. According to her the filing of the petition for restitution of conjugal rights amounted to condonation of the alleged acts of cruelty on her part and, therefore, the petition was liable to be dismissed. The Division Bench following the judgment of the Apex Court in N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534 held that it was a mandatory duty cast upon the of Court to consider whether the petitioner spouse has condoned the acts of cruelty or not. The Court hereafter considered the meaning of the word condonation and the impact of filing a petition for restitution of conjugal rights.
rt The Court held thus:--
"13. x x x x x x x x x x x x x x x x x x x x Condonation has not been defined anywhere. 'Condonation' is a word of technical import, which means and implies the wiping of all rights of the injured spouse to take matrimonial proceedings. In a sense condonation is reconciliation, namely, the intention to remit the wrong and restore the offending spouse to the original status which in every case deserves to be gathered from the attending circumstances. The forgiveness in order to constitute condonation need not be express. It may be implied by the husband of the wife's conduct and vice versa.
Ordinarily, as a general rule, condonation of matrimonial offence deprives the condoning spouse of the right of seeking relief on the offending conduct.
When a petition is filed claiming a decree for restitution of conjugal rights, it clearly stipulates that the person seeking relief has no grouse or cause of complaint against the other spouse and even if there was any cause or complaint, the same has either been condoned or forgiven. The intention being to resume normal cohabitation. As held in Dastane's case (AIR 1975 SC 1534) (supra), matrimonial offence is erased by condonation.
In view of clear provisions contained in clause (b) of ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 21 sub-section (1) of Section 23 of the Act, it is always for the person who has approached the Court to satisfy that the act of cruelty has not been condoned. xx xx xx xx The conduct, in this case, of the husband in .
having moved the petition thereafter under Section 9 of the Act would amount to his intention to forgive the offending spouse in having made the statement before the Panchayat which alone was the ground made out which according to the husband was cruelty on the part of the wife. Admittedly, the allegation was made once and was not repeated thereafter. Due to the parties of having lived together even for a short duration of 7/8 days on a couple of occasions, as admitted by the husband, after the wife made the allegation amounts to the restoring of the offending spouse to the original rt status. By this act and conduct on the part of the husband, it can reasonably be inferred that the act stood condoned and as such husband was not entitled to the relief claimed."
18. The law laid down in this judgment is applicable with even greater force to the present case. Here the husband has filed a joint petition. The petition for condonation of restitution of conjugal rights obviously implies the condonation of all earlier acts of cruelty. Therefore, there could not be an alternative prayer for divorce made in the same petition itself. Another interesting aspect is that though the petition for restitution of conjugal rights was filed on 31-3-1993, the petitioner in his statement recorded in Court on 24-2-1994 stated that despite the earlier alleged instances of cruelty, including the instance of 23-3- 1993, he was still willing to keep the respondent at his home, but thereafter the respondent had created such a situation that now he wants a decree for divorce. Therefore, it is clear that even in his statement he has admitted that he had condoned the alleged acts of cruelty and was willing to keep his wife with him. According to him, thereafter i.e. after 23-3-1993, the wife had created such a situation that it led to his mental tension and, therefore, he could not keep her in his house. What are these additional facts have ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 22 neither been pleaded nor proved. Therefore, in my opinion, the petitioner could not have filed a joint petition and even if such a petition was maintainable the petitioner having himself condoned the acts of cruelty, if any, is not entitled .
to any decree for divorce on the ground of cruelty."
27. This Court is bound by the earlier judgment. Hence, the submission that there cannot be any condonation of the acts of desertion cannot be accepted.
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28. No other point was urged.
29. Therefore, there is no infirmity in the judgment passed rt by the learned Trial Court and this point is answered in the affirmative.
Final order:
30. In view of the above, the present appeal fails and the same is dismissed. The record of the case be remitted back to the learned Court below. Pending miscellaneous applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 14thSeptember,2023 (Ravinder) ::: Downloaded on - 29/09/2023 20:34:15 :::CIS 23 .
of rt ::: Downloaded on - 29/09/2023 20:34:15 :::CIS